Reconsidering Citizens United

August 3, 2016

Before I ever was a Bernie Sanders supporter, I was a Lawrence Lessig supporter. As a free culture fanatic and huge proponent of both copyleft and the public domain, I’ve been a follower and supporter of Lessig since I was a teenager. Perhaps even more significantly than his work with the public domain and the Creative Commons, in recent years he has been nigh obsessed with fixing democracy by addressing the problems surrounding the ways that campaigns are financed. While there are indeed countless goals to strive for politically and social issues in dire need of attention, Lessig argues that campaign finance is far and away the biggest issue that we as a nation face. Democracy, simply put, is fundamentally broken. Corporations sway the results of all major elections by throwing absurd amounts of money toward the campaigns of politicians that will in turn treat them favorably when they go to create and amend legislation, or perform executive duties. According to Lessig, we have to fix democracy first. You cannot have social justice or fair, equal representation in government when the game is rigged from the start. I would agree with that. Therefore, as you might expect, I was thrilled when he announced that he would be running for President (although he never had a chance of winning, it would appear that he did convince Bernie Sanders of the need to tackle campaign finance reform immediately upon entering office, which had a ripple effect when Bernie then convinced Hillary Clinton to make similar promises in relative exchange for his endorsement. I’m skeptical, yet hopeful, that Clinton will follow through with this should she be elected as President.).

The Supreme Court’s 5–4 decision in Citizens United v. Federal Election Commission has been a constant point of contention for Lessig. He has, on many occasions, publicly and vigorously criticized the ruling and demanded that the decision be overturned.

But it’s not just Lessig: Bernie Sanders, Jill Stein, and nearly all other progressives with the goal of reforming democracy are united in the belief that the decision from Citizens United must be overturned.

I didn’t want to be the guy just blindly regurgitating all the talking points from the candidates I tend to agree with most strongly. My understanding of the court case and subsequent ruling was limited at best, so I wanted to take the time to carefully study the nuances of the case, understand what it was about, and come to an understanding of the decisions handed down by our highest court in the land.

The most surprising discovery was that, at the end of the experiment, I found myself disagreeing with the nearly universal disdain for the ruling and instead agreed with the majority decision. I’m hoping that by writing this essay someone can either help me fill in the blanks that I am missing and correct my line of thinking, or, on the less-likely chance that my thinking is accurate and reasonable, join me in my position.

This is my understanding of the Citizens United v FEC case. Grab some popcorn, this gets juicy.

This story really begins in 2002, with the passing of The Bipartisan Campaign Reform Act (BCRA). This act, among other things, essentially said that corporations and unions could not use their money to broadcast advertisements that mentioned a candidate either 30 days before a primary or 60 days before a general election.

Being the year 2002, we all know that everything political will eventually somehow tie into one (or both) of two things: 9/11 and the Bush Administration. Michael Moore promptly makes Fahrenheit 9/11, a documentary that criticizes the Bush Administration for how it handled the September 11th terrorist attacks, and as a surprise to no one, it’s a bit divisive. And unfortunately, given the way that everything played out, this movie was coming out smack dab in the middle of the 2004 election season.

Along comes a conservative nonprofit called Citizens United, which of course said, “hold on one second here… it’s almost time for an election! You can’t run advertisements for a movie that bashes our guy relentlessly right before people go to vote!” So they promptly run to the Federal Elections Commission (FEC) and lodge a complaint based on the Bipartisan Campaign Reform Act, which the FEC quickly dismisses. I should note that Citizens United then makes a second complaint based on two other pieces of legislation, but I don’t have time here to go into detail on those two, and they don’t really matter in the context of this story.

So, basically, the FEC tells Citizens United to buzz off. Citizens United, in a reasonable yet passive-aggressive move, says to itself, “well, shit, if Michael Moore can make a movie knocking our guy, why can’t we make a movie knocking people on the other side?!?” It’s petty and childish, but it’s fair. They then pivot and partially turn into a commercial film production firm, and for the next few years create movies criticizing liberal candidates, most notably Hillary Clinton leading up to the election in 2008 when she was running against Barack Obama during the Democratic Primary. The main documentary in question was called Hillary: The Movie, and they wanted to run television advertisements for it during prime time. The FEC was then like, and again, I’m paraphrasing, “hey, you’re a non-profit corporation, not an independent film company, so no, you totally cannot do this, it’s a violation of the BCRA.”

Let’s fast-forward to the end. In a 5–4 decision (changing the future of democracy with the difference of a single vote still feels icky to me, but more on that later), it was determined that section 203 of be BCRA violated the First Amendment. Justice Anthony Kennedy delivered the majority opinion, in which he wrote that “if the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the antidistortion rationale were to be accepted, however, it would permit Government to ban political speech simply because the speaker is an association that has taken on the corporate form.” In the intervening time since the decision was delivered, Justice Kennedy has received a lot of criticism, having been called the man that “drowned democracy” and “paved the way for SuperPACS and the return of soft money.”

As you can see by the linked majority opinion, the full explanation of the Court’s decision was lengthy, but it mostly boiled down to a free speech issue. So what about those four justices who disagreed?

The difficult thing about this case is that I, more or less, agree with both sides. Yes, it is certainly true (by my estimation) that campaign finance reform is the biggest threat to democracy that we face today. Our government is tragically and seriously broken. Congress doesn’t work for the people as it should; indeed, when it does work at all, it tends to do whatever is in the interest of the corporations and organizations funding the campaigns of those who make up the two houses of Congress. Likewise, only the politicians willing to work for the agendas of such organizations and companies stand a genuine chance of being elected. Citizens United did pave the way for SuperPACS, and directly led, in part, to the broken system we are facing today.

The rights guaranteed by the First Amendment are often grossly misunderstood. People wrongly assume that they can say whatever they want whenever they want, without realizing that the First Amendment only guarantees that the government shall make no law “abridging the freedom of speech.” It seems clear to me, and again, I’d love for someone to explain otherwise to me, that the BCRA was indeed a law that was made which abridged the freedom of speech and expression. It really is that simple and straightforward. It only existed to stop organizations and corporations from using their speech (I would argue that spending money is also a form of speech) in the manner they wanted, and only during a particular time frame to benefit a particular agenda. It seems cut and dry.

So let’s not throw our most sacred right out for the sake of fixing democracy. It needs to be fixed, sure, but this simply isn’t the solution. You can’t merely replace one problem with another. Instead, the root causes need to be examined, and a more elegant solution must be put in place.

So what is the solution for fixing democracy? How do you reform campaign finance? I don’t have the answer. There are many smarter people than me working to solve that problem. I will instead leave you with this: instead of limiting the speech that people can hear, what if we instead focused on making sure people had the education, backgrounds, and reasoning skills to make their own informed decision without trying to lead them one way or the other?

I know my opinion is not popular, and I look forward to your respectful comments. If I have failed to understand something properly, or committed an error in my reasoning, I welcome the correction and will change my views accordingly.